In re Applications for Consent to the Transfer of Control of Licenses and Section
214 Authorizations from Media One Group, Inc., Transferor, To AT&T Corp.
Transferee, CS Docket No. 99-251
Dissenting Statement of Commissioner Harold W. Furchtgott-Roth
In the original Memorandum Opinion and Order approving the transfer of certain
licenses from Media One Group, Inc., to AT&T Corporation, I agreed that the combined
entity was obliged to come into compliance with our horizontal ownership rules. I did
not agree, however, that the Commission possessed the authority under any rule to direct
the company as to how to achieve that compliance or otherwise to control the company's
relationship with Time Warner Entertainment (TWE). See generally Statement of
Commissioner Harold W. Furchtgott-Roth, Concurring in Part and Dissenting in Part, In
re Applications for Consent to the Transfer of Control of Licenses and Section 214
Authorizations from Media One Group, Inc., Transferor, To AT&T Corp. Transferee, 15
FCC Rcd. 9816 (2000). Accordingly, I do not support today's action, founded as it is on
those aspects of the Order.
In any event, today's action seems to me to be based on an over-aggressive
reading of the relevant ordering clause. Nothing in the text of that clause affirmatively
prohibits the positing of an alternative course of action. As required by the clause,
AT&T did "elect[]" "one of the compliance options" - divestiture of Liberty Media
Group and other programming interests. It simply went on to say that if the tax
consequences of that transaction proved prohibitive due to an adverse ruling by the
Internal Revenue Service in a pending filing, it would pursue another of the compliance
options -- divestiture of TWE. Again, despite the Commission's conclusion that this
supplementary designation obviously contravened the plain language of the clause, I see
nothing in its language that barred AT&T from specifying a fallback position to its chief
election.
Indeed, it seems quite prudent and sensible to fully explain to the Commission the
possible scenarios that might occur in the execution of the large and complicated
corporate transactions contemplated here. In the real world, companies such as AT&T
face obstacles to the effectuation of certain plans that cannot always be predicted. Events
beyond the control of the companies - here, an unfavorable tax ruling by the Internal
Revenue Service that may have ancillary effects on contracts and ownership rights - can
create a situation involving inordinate costs or even legal impossibility. For AT&T to
make provision for those realities, and for this Commission in turn to recognize them,
does not seem unreasonable to me. At the very least, AT&T was certainly not on clear
notice that the filing it submitted acknowledging these possibilities was somehow
impermissible under the terms of the ordering clause.
Similarly, I think it an over-aggressive reading of AT&T's letter for the
Commission to conclude that it elects divestiture of TWE. The letter makes clear that
AT&T's Plan A, if you will, was to pursue divestiture of Liberty Media. Today's Order
wholly ignores this intent, however, and literally puts words in AT&T's mouth.
For the foregoing reasons, I respectfully dissent from this Order.
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